Yankee Atomic owners win $73M over nuke fuel

For the second time this year, owners of the former Yankee Atomic plant in Rowe have gotten the thumbs up to receive damages for the federal government’s failure to take possession of high-level radioactive waste stored there.

Yankee Atomic Electric Co., which decommissioned its 185-megawatt reactor after shutting down in 1992 what was then the nation’s oldest operating commercial reactor, received a judge’s approval this week for $73.3 million for costs incurred between Jan. 1, 2002 and Dec. 31, 2008.

Yet there has been no award of money, and the decision could be appealed by the federal Department of Energy, which happened to a 1998 lawsuit was before it was upheld with an award in February.

Thursday’s decision by the U.S. Court of Federal Claims also approved $126.3 million for Connecticut Yankee Atomic Power Co. and $35.7 million to Maine Yankee Atomic Power Co. in response to a lawsuit filed by the related companies. Judge James F. Merow’s decision reflects the government’s failure to honor contractual obligations to begin removing spent nuclear fuel and other high-level radioactive waste from the three sites by January 1998.

In February, following 14 years of litigation, the government reimbursed $38.3 million to Yankee Atomic for costs incurred from 1998 through 2001 as part of a settlement of $160 million to the three companies, which the companies filed to be returned to ratepayers, according to ownership of the plants. That ownership included 34.5 percent by National Grid, a subsidiary of which is Massachusetts Electric Co., and 7 percent by Western Mass. Electric Co. In July, the Federal Energy Regulatory Commission agreed to a plan to return money to Yankee’s constituent utilities.

Under the 1982 Nuclear Waste Policy Act, the spent fuel assemblies at the commercial plants legally became property of the federal Department of Energy in 1998, and the Court of Appeals agreed that year that the government, unable to site a waste repository at Nevada’s Yucca Mountain, was in breach of its contract to remove the high-level waste from the reactors.

According to an energy department inspector general’s report issued last November, Yankee’s first-in-the-nation case was one of 74 filed for Nuclear Waste Fund damages for nuclear waste storage, of which 31 had been settled at a cost of nearly $2 billion.

The ongoing litigation between the three companies and the Department of Energy is being conducted in phases as an earlier U.S. Court of Appeals decision ruled that utilities cannot receive damage awards for costs that have not yet been incurred. Therefore the owners of the three decommissioned plants expect to continue to litigate with the DOE every several years to request damages for costs incurred.

The three Yankees recently filed a third round of damages claims in the U.S. Court of Federal Claims for the years 2009 through 2012.

Entergy Vermont Yankee also filed a suit last year and was awarded by U.S. Court of Appeals about $41 million for the period between Jan. 1, 2002 and April 2008, according to Entergy spokesman James Sinclair. The company plans to file another lawsuit for waste-storage costs that can be recouped.

“We’ve already obtained one judgment from them and have received a check, Entergy Nuclear’s Vice President of External Affairs Michael Twomey, told the Vermont State Nuclear Advisory Panel Thursday night. “As we continue to do spent fuel management, we will continue to sue the Department of Energy ... The expectation is there will be some lag between spending the money and receiving funds from the Department of Energy that over time should match the amount we spend.”

Although there is a lag of several years, he said, plant owners are not allowed to charge interest for money spent.

The Rowe plant was decommissioned in 2007, and 533 radioactive spent-fuel assemblies remain on site in a protected dry-cask storage area.